N.J. Admin. Code § 7:38-12.1 - Standard conditions that apply to all orders, decisions, approvals or determinations issued pursuant to the Highlands Act and its implementing rules

Current through Register Vol. 54, No. 7, April 4, 2022

(a) The following standard conditions apply to all HPAAs, Highlands general permits, HPAAs with waiver, HRADs and orders issued under this chapter:
1. Duty to comply: The permittee shall comply with any order, decision, approval, determination or authorization issued pursuant to the Highlands Act, including all permit programs incorporated into the HPAA, their implementing rules and the approved site plan or subdivision, if any. Failure to comply constitutes a violation of the Highlands Act and this chapter, and shall authorize the Department to bring an enforcement action against the permittee and, with notice to the permittee, issue such orders or decisions as necessary to protect the Highlands environment from unlawful destruction or degradation. In some cases, noncompliance may also constitute a violation of the Water Pollution Control Act and/or the Federal Clean Water Act and subject the permittee to prosecution, fines and penalties under those laws or their implementing regulations;
2. Duty to reapply: If the permittee wishes to continue an activity regulated by an HPAA (including an HPAA with waiver) after the expiration date of the approval, the permittee must apply for and obtain an extension or a new approval, prior to the expiration of the approval;
3. Duty to halt or modify activity: If the Department approves an HPAA that results in unanticipated consequences that violate Federal or State law or regulation, the permittee shall immediately halt or modify the activity to eliminate or cure the violation, notify the Department of the action taken, and, if necessary, apply for an emergency HPAA or a modified HPAA. A permittee who fails to take such action shall be subject to penalty as provided by the relevant law or regulation;
4. Duty to minimize environmental impacts: The permittee shall prevent, minimize or correct any adverse impact on the Highlands environment resulting from activities conducted pursuant to the HPAA, or from noncompliance with an HPAA. Mitigation consistent with N.J.A.C. 7:7A-15 will also be required for disturbance to freshwater wetlands or State open waters;
5. If the permittee, before or during the work authorized under an HPAA, encounters a probably historic and/or archaeological area, the permittee shall immediately notify the Department and proceed as directed;
6. Duty to assure proper operation and maintenance: The permittee shall at all times properly operate and maintain all facilities and systems for pollution, wastewater, stormwater treatment and control which are installed or used to achieve compliance with the HPAA. Proper operation and maintenance includes effective performance, adequate funding, adequate operator staffing and training, and adequate laboratory and process controls, including appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems only when necessary to achieve compliance with the permit. This provision requires the proper execution of any approved mitigation proposal designed to mitigate losses caused by the permitted activity. The permittee shall maintain the authorized work areas in good condition and in accordance with the permit;
7. Duty to provide information: The permittee shall furnish to the Department within a reasonable time, any information which the Department requests to determine whether cause exists for modifying, terminating and reissuing, or terminating the HPAA or HRAD, or to determine compliance with an HPAA, a Department order or decision or a court order. The permittee shall also furnish to the Department, upon request, copies of records required to be kept by the approval;
8. Duty to permit entry and inspection: The permittee shall allow the Department, or an authorized representative, upon the presentation of credentials, to:
i. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of the HPAA or order;
ii. Have access to and copy, at reasonable times, any records that must be kept under the conditions of the HPAA or order;
iii. Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under the HPAA or order; and
iv. Sample or monitor at reasonable times any substances or parameters at any location for the purposes of assuring compliance with an order or approval or authorization issued pursuant to the Highlands Act or its implementing regulations or as otherwise authorized by the Federal Clean Water Act, by the Highlands Water Protection and Planning Act, or by any rule or order issued pursuant thereto, any substances or parameters at any location;
9. Duty to maintain records:
i. Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity;
ii. The permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by the HPAA or HRAD, and records of all data used to complete the application for the HPAA or HRAD, for a period of at least three years from the date of the sample, measurement, report or application. This period may be extended by the Department at any time;
iii. Records of monitoring information shall include:
(1) The date, exact place, and time of sampling or measurements;
(2) The individual(s) who performed the sampling or measurements;
(3) The date(s) analyses were performed;
(4) The individual(s) who performed the analyses;
(5) The analytical techniques or methods used; and
(6) The results of such analyses;
10. Duty to report:
i. Planned changes: The permittee shall give notice to the Department as soon as possible of any planned physical alterations or additions to the permitted project or activity;
ii. Anticipated noncompliance: The permittee shall give advance notice to the Department of any planned changes in the permitted project or activity which may result in noncompliance with permit requirements and shall not undertake the change in work until after receiving Department approval;
iii. Transfers: An HPAA is not transferable to any person except after notice to the Department;
iv. Monitoring reports: Monitoring results shall be reported at the intervals specified in the HPAA;
v. Twelve-hour reporting: the permittee shall report any noncompliance with a HPAA which may endanger health or the environment. This information shall be provided to the Department orally within 12 hours from the time the permittee or the designated supervisor of the construction site becomes aware of the potentially dangerous circumstances. The permittee or its agent shall also provide the Department a written description of the information no more than five days after the permittee becomes aware of the potentially dangerous circumstances. The written submission shall contain a description of the noncompliance and its known or suspected cause; the period of noncompliance, including exact dates and times, and, if the noncompliance has not been corrected, the anticipated length of time it is expected to continue; and actions already taken or planned in order to reduce, eliminate, and prevent recurrence of the noncompliance;
vi. Other noncompliance: The permittee shall report all instances of noncompliance not reported pursuant to (a)9i, iv, and v above, at the time monitoring reports are submitted. The reports shall contain the information listed in (a)9v above; and
vii. Omitted or incorrect information: Whenever the permittee becomes aware that it omitted any relevant fact from an application, communication or report to the Department, or that the information provided the Department in an application, communication or report was inaccurate at the time of its submission or is currently inaccurate, the permittee shall promptly advise the Department of the omission or inaccuracy and provide the accurate information, if known. Failure to do so shall constitute a violation of the Highlands Act and this chapter and subject the permittee to the fines and penalties thereunder;
11. Duty to mitigate: The permittee shall perform any wetland or State open water mitigation required under the approval prior to or concurrently with regulated activities in accordance with 7:7A-15.3(a). If a permittee performs permitted activities without performing required mitigation, the acreage of mitigation required shall be increased by 20 percent each year in accordance with 7:7A-15.3(b). If a project requires tree planting mitigation in accordance with 7:38-3.9, planting shall occur prior to or concurrently with regulated activities so long as it is the appropriate season for tree planting;
12. Duty to display State and local approvals: A permittee shall maintain on the site of regulated activities a complete copy of all State and local approvals, building permits, the HRAD, if any, the HPAA and any approved site plan or construction plan and shall have these records available for public inspection during regular business hours and whenever work is being conducted on the site. All activity or projects authorized by an HPAA shall be posted with a sign, prominently displayed at the main entrance to the property or work site, at all times from commencement to completion of the permitted activity. The sign shall contain at least the following information:
i. The work authorized by the Department;
ii. The type of approval that authorized the work, and the Department's file number;
iii. A Department phone number for verification; and
iv. The location on the site at which the approval and plans may be inspected;
13. Signatory requirement: All applications, reports, or information submitted to the Department shall be signed and certified as required at 7:38-9.1(c);
14. An HPAA runs with the land and is binding upon the permittee and the permittee's successors in interest in the land or in any part thereof. Permittees shall notify the Department of any changes in ownership or control of the site as required pursuant to 7:38-9.7;
15. An approval issued under this chapter does not relieve a permittee from the obligation to obtain any other permits or approvals required by law;
16. A permittee shall be excused from compliance with conditions of an HPAA only to the extent specified in an emergency permit issued by the Department pursuant to N.J.A.C. 7:38-7;
17. Permit actions: No HPAA, determination or HRAD shall be modified, suspended, or terminated except by action of the Department or a court of competent jurisdiction. A permittee's submission to the Department of a request to modify an HPAA or of a notice of anticipated noncompliance does not alter any condition of an HPAA or HRAD. In such cases, the permittee is responsible for taking those actions necessary to ensure continued compliance with an existing HPAA or HRAD while the Department evaluates the permittee's submissions; and
18. Property rights: An HPAA or HRAD does not convey any property right of any sort.


N.J. Admin. Code § 7:38-12.1
Amended by R.2006 d.420, effective 12/4/2006.
See: 37 N.J.R. 4767(a), 38 N.J.R. 5011(a).
In (a), inserted "Highlands general permits,"; deleted former (a)17 and recodified former (a)18 and (a)19 as new (a)17 and (a)18.

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